As this blog has discussed in some detail in the past, Adult Guardianship is a complicated area of the law, dealing with many sensitive issues of personal power, ability and basic competence. On a very basic level, guardianship is a judgment that is entered by a Court, which allows one person the the legal right to exercise decision making over another. The basic medical reality is that once competency is gone, an individual often does not regain that capacity back.

As such, when a Judgment of Guardianship is entered is often permanent. There are plenty of cases to show that this is indeed not so common so as to consider it an inalterable rule. The law recognizes this fact and allows for a judgment of guardianship to be vacated if and when a person regains their facilities. Under current New York law, a guardianship Judgment may be entered upon the consent of the ward (protected party), or, if not by consent, then by clear and convincing evidence that someone (either the potential ward or a third party) will likely suffer harm because :

  1. the potential ward is unable to provide for the personal needs or unable to manage his/her property and financial affairs; AND
  2. the potential ward cannot adequately understand and appreciate the nature and consequences of such inability.

When a person regains their decision making capacity or develops sufficient decision making supports, the Judgment of Guardianship may no longer be necessary.


An individual, whether considered legally incapacitated or not, always retains the legal right to petition the Court to vacate or modify a Judgment of Guardianship. The American Bar Association conducted a study of how common petitions to restore rights are and how successful. While the study authors admit that the “respondents were not a representative sample” it does help to illuminate the nature of restoration of rights following the entry of a Judgment of Guardianship.

Of the respondents who filed (as opposed to those respondents who ruled on the petitions or opposed them), an astounding 96% reported having some limited success with restoring some rights, with 51% of the individuals who had at least some rights restored, considered part of the “older” population. If a person is successful, the Court will Order whatever property is in the hands of the guardian to be returned to the ward. Fiduciary laws and criminal laws dealing with embezzlement and fraud protect the ward from theft or negligent misappropriation of funds or property.


Generally Courts rely on two different but obviously related forms of evidence in regards to the petition. First is medical examination relating to the capacity of an individual; second is the Court’s own in Court observation of an individual. Certainly lay observations or opinion testimony helps to supplement this evidence but is rarely primary evidence in and of itself. Unfortunately some of the evidence comes with its own limitations. A psychological evaluation to test the capacity of an individual is forensic in nature, which necessarily means that the evaluator does not know the individual, relies on potentially biased or otherwise faulty evidence and takes into account psychological data that speaks little to the issue of life skills or other pertinent skill sets that are needed if and when a judgment of guardianship is modified or vacated.

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